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Trans Mountain update: B.C. refers three questions to Court of Appeal

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World Pipelines,

The provincial government filed a reference case last Thursday in the B.C. Court of Appeal asking whether amendments it is proposing to the Environmental Management Act are valid and if they give the province the authority to control the shipment of heavy oils based on the impact spills could have on the environment, human health or communities.

B.C.’s court case over the flow of heavy oil through the province continues. The province is also asking the court whether the amendments are overridden by federal law.

Here are the three questions the B.C. government has referred to the Court of Appeal:

  • Is the draft legislation within provincial jurisdiction to enact?
  • Would the draft legislation be applicable to hazardous substances brought into British Columbia by means of an interprovincial undertaking?
  • Is there any federal legislation that is inconsistent with the proposed amendments that would render the proposed amendments inoperative?

The court could either refuse to answer the question due to a lack of information or, more likely, provide guidelines on how permitting could work. Experts have suggested that the province will lose on the validity question because it is targeting a federally approved project, even though the legislation covers broad environmental concerns.

The B.C. government is also asking Ottawa to improve its Oceans Protection Plan, providing additional resources to the coast to address the risk of oil spills.

Last week, on the same day that B.C. went to court seeking jurisdiction to limit the transport of heavy oil, Ottawa released a formal response to the province’s concerns about oil-spill response.

The 24 000 word essay is a rebuttal to B.C.’s claims that Canada has not done enough – and isn’t planning to do enough – to protect the coast from a catastrophic oil spill. “British Columbia does not address the robust federal safety regimes, the long-standing scientific expertise, and significant recent investments made by the Government of Canada related to spill management,” said the paper, which was filed in response to B.C.’s current round of consultation on oil spills.

The federal government says it has already addressed the existing gaps in oil-spill protection with its CAN$1.5 billion Oceans Protection Plan.

In related news, a B.C. First Nation is questioning the greenlighting of the Kinder Morgan Trans Mountain pipeline, arguing there may be new evidence the federal government failed to complete consultations with First Nations prior to approving the expansion. 

Kinder Morgan’s most recent statement on the matter says: “We have been clear that under the current circumstances of project uncertainty, Kinder Morgan will not commit further shareholder resources to the Trans Mountain Expansion Project. As a private company, we cannot resolve the differences between governments that have continued since our announcement of April 8th. We remain clear and steadfast in our two objectives - the ability to construct in BC and to protect our shareholders. We are actively engaged with the Federal and Alberta provincial governments and those conversations will continue in good faith. Nothing has changed in that regard.”

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